NOAA regulations (15 CFR
part 930) describe the obligations of all agencies (e.g., National
Marine Fisheries Service, Regional Fishery Management Councils
(Councils)) that are required to comply with the Federal consistency
provisions of the Coastal Zone Management Act (CZMA). The CZMA
and the Magnuson-Stevens Fishery Conservation and Management
Act, which establishes policies affecting the conservation and
management of the Nation's fishery resources, are fundamentally
compatible and should be administered in a manner to give maximum
effect to both laws. Councils are encouraged to conduct early
informal discussions with the state coastal management agencies
at the earliest practicable time in the planning process to
identify state coastal management concerns and relevant enforceable
policies of the state coastal management programs. Councils
are encouraged to include consistency issues in discussions
of draft fishery management plans (FMPs) and amendments.

Upon adoption by the Council(s)
of the final FMP/amendment (i.e., selection of preferred alternatives,
development of sufficient information to determine the impacts
of alternatives), the Council or Regional Administrator (RA)
must determine whether the proposed action, whether within or
outside the coastal zone, is reasonably likely to affect any
land or water use or natural resource of the coastal zone of
states with coastal approved management programs. A finding
that the action will affect coastal uses or resources necessitates
a consistency determination; a finding that the action has no
effect necessitates a negative determination.

2. Consistency Determination

Once the decision is made that an FMP
has effects on any coastal use or resource of a state with an
approved program, the Council (or RA) must prepare a written
determination that states whether the FMP is consistent to the
maximum extent practicable with the program. Although the Council
(or RA) may consult with the responsible state program official
in preparing this determination, the responsibility for its
preparation rests with the Council (or RA).

A consistency determination must contain
a brief statement that the FMP will be implemented in a manner
consistent to the maximum extent practicable with the enforceable
policies of the state program. According to NOAA regulations
(15 CFR part 930, subpart C) and the Coastal Zone Act Reauthorization
Amendments of 1990 (Pub. L. 101-508), the consistency determination
also must include:

a detailed description
of the activity, . . . , and

their coastal zone
effects, and comprehensive data and information sufficient
to support the Federal agency's consistency statement.

Although the amount of
detail necessary to support the determination will vary according
to the type or magnitude of coastal effects on the coastal zone,
the Council (or RA) may not simply assert that an FMP is "consistent"
or "consistent to the maximum extent practicable" with state
programs, and omit supporting information. If FMPs are prepared
in a manner that sufficiently considers consistency with state
coastal management programs and otherwise meets the requirements
of NOAA regulations, then a consistency determination for an
FMP may provide specific references to sections of the FMP that
discuss consistency issues and support the determination, and
need not duplicate the same information.

The Councils (or RAs) must maintain a
record documenting consistency determinations and state responses
to such determinations.

If the consistency determination and supporting
documentation are sent to the state coastal management agency
prior to the time that the FMP is submitted to the Secretary
for review and approval, the consistency review period (45 days
for state review plus an automatic 15-day extension if requested
by the state; further extension requests are at the discretion
of the Federal agency) can run concurrently with the Secretarial
review period. It is important to address the consistency issues
during the preparation of the FMP and include supporting information
because, given the statutory limitation on the Secretarial review,
if a state agency objects at this stage there would be little
time to develop information and resolve disagreements short
of litigation.

NOAA regulations also provide for the
use of a general consistency determination in cases where the
Federal agency will be performing a repeated activity other
than a development project. The use of a general consistency
determination can avoid the necessity of issuing separate consistency
determinations for each incremental action controlled by the
major activity. A general consistency determination may only
be used in situations where the incremental actions are repetitive
or periodic, substantially similar in nature and do not affect
the coastal zone when performed separately. The procedural requirements
for a general consistency determination are the same as those
for any consistency determination prepared for other direct
Federal actions.

3. Negative Determination

In certain cases, NOAA regulations allow
for use of a negative consistency determination. A negative
determination is appropriately used only in those cases where
the FMP/amendment has no effect on any land or water use or
natural resource of a state's coastal zone. If the Council (or
RA) elects to prepare a negative determination, the Council
(or RA) must provide the state coastal management agency with
a notification, which briefly explains the basis for the negative
determination, at the earliest practicable time, but at least
90 days before final approval of the FMP/amendment, unless both
the state coastal management agency and the Council (or RA)
agree to an alternative schedule.

4. Secretarial Review

The Council (or RA) must provide, in the
final FMP/amendment or in supporting documentation, copies of
the consistency determinations and any supporting documentation
sent to the state coastal management agencies. If the Council
(or RA) has been able to take advantage of early coordination
efforts with state coastal management agencies and has received
state agreement or disagreement on the consistency determination,
copies of state responses must be included in the record of
decision on the final FMP/amendment.

If state agency responses are received
after initiation of Secretarial review, these responses must
be submitted to the RA upon receipt. The Council (or RA) will
provide copies of these responses with documentation accompanying
the submission of the final rule. Final Secretarial approval
may not occur sooner than 90 days from the issuance of the consistency
determination to the state coastal management agency, unless
the Council (or RA) and the state agency agree to an alternative
period.

When all of the applicable states have
agreed with the consistency determination, or when agreement
is inferred because the state agency has failed to provide a
response within the allowed period, the following statement
should appear in the Determinations section of the RA's decision
memorandum:

The Council (or RA) has provided a copy
of the FMP (or amendment) and a consistency determination
to the state coastal management agency in every state with
a federally-approved coastal management program whose coastal
uses or resources are affected by the FMP (or amendment).
The States of (identify individual states) have agreed with
the consistency determination. The States of (identify individual
states) did not respond within the statutory time period and
agreement with the consistency determination is inferred (add
if appropriate).

If any state with an approved coastal
management program disagrees with the Council's (or RA's)
determination (assuming all procedural requirements have been
met), the state's disagreement with the determination becomes
an issue in the RA's decision memorandum. The text must present
the positions of the Council (or RA) and the disagreeing state(s),
and must provide justification, based on Federal legal authority,
for the finding that the FMP (or amendment) is consistent
to the maximum extent practicable.